Tried to go to rehab; ONCA said no, no, no

Clouthier’s blood alcohol was over the legal limit; he drove anyway. He drove badly and dangerously. Clouthier rear-ended another motorist as he approached an intersection; he fled from the accident. He did so by reversing over the median and heading into a residential area. There he rear-ended a second vehicle. He fled from that accident too- accelerating away at speeds over 100km/hr. He collided head on with another vehicle. One of the passengers of that third vehicle sustained serious injuries and need emergency surgery. Clouthier climbed out of the window of his truck and tried to run away. Witnesses captured him and held him until police arrived.

Clouthier plead guilty to impaired operation causing bodily harm, dangerous operation causing bodily harm and two counts of failing to stop at the scene of an accident.

He was remorseful. He took steps prior to sentencing to address his addictions and depression. By the time of sentencing he was gainfully employed.

Clouthier sought a suspended sentence or alternatively that he be sentenced to 90days and be permitted to serve the time on weekends.

The Crown argued for a sentence of 12months incarceration followed by probation.

The sentencing judge decided that a period of 5months in custody was the appropriate sentence, however she offered Clouthier the opportunity to serve the sentence in two intermittent installments. Clouthier accepted. He served 90days intermittently and then returned to court months later to be sentenced to a further 60days intermittent sentence.

The Crown appealed arguing that the imposition of consecutive intermittent sentences was illegal and that the sentence was manifestly unfit. The Ontario Court of Appeal agreed: 2016 ONCA 197.

Watt JA writing for the Court held:

What happened here was that, by imposing intermittent sentences at different times, the trial judge did indirectly what she could not have done directly without breaching the 90-day limit in s. 732(1) of the Criminal Code. The result is an effective sentence that defeated the very object of s. 732(1) and disregarded the correctional principles that it was meant to serve. [@para 38]

With respect to the fitness of the sentence the Court held that the five month sentence imposed “fails to reflect in any meaningful way the predominant sentencing objectives of general deterrence, denunciation, and protection of the public.” [@para 58]

Moreover the Court noted that it was an error not to have imposed consecutive sentences for the two counts of failing to stop at the scene. Although the sentences for failing to stop could have been made concurrent to each other to give effect to the principle of totality “they should have been made consecutive to the sentences for the dangerous and impaired offences.” [@para 60]

The Court held that the appropriate sentence in this case would have been 15-18months followed by a 12 month period of probation. This is so notwithstanding the positive rehabilitative steps Clouthier took to address his addictions.

In deciding whether to reincarcerate the offender the Court explained that:

These were serious offences that demonstrated a complete disregard for the lives and safety of others lawfully using the streets of an urban area on a summer evening. Repeated flights from the scenes of the accidents displayed a callous indifference to fellow motorists. No undue delay has occurred between service of the sentence and the hearing and determination of the sentence appeal. Despite the respondent’s remorse and significant rehabilitative steps, I see no reason to stay the operation of the sentence I consider appropriate in this case. [@para 64]

The ONCA ordered Clouthier to surrender himself within 72hours to serve a further 9months in custody.

Active efforts at rehabilitation are an important consideration at sentencing however they cannot displace the predominant sentencing objectives of deterrence, denunciation and protection of the public. As Watt JA held, those efforts are what make the appropriate range 15-18months “were it not for these positive attributes, a fit sentence would involve a more lengthy period of incarceration.” [@para 61]

 

Don't take your guns to town son, leave them at home

Darteh was hanging out in front of his residence. Police had received a complaint from the property manager that there had been a lot of trespassers especially after 8pm. Police spotted Darteh; it was after 8pm. Darteh spotted the police and quickly walked away; he stopped at the first apartment, knocked on the door and tried the handle to get in.

Police found this all to be quite suspicious and approached Darteh.  Darteh was carrying a partially consumed bottle of liquor and he reeked of booze. He had blood shot eyes- the officers felt this was a strong indication that Darteh had been drinking in the courtyard where they had first spotted him.

The officers asked Darteh for ID and he handed it over with a trembling hand; this officers found his level of nervousness suspicious. As Darteh was speaking with the officer he stood with his knapsack, which he wore on his back, pressed firmly against the wall; the officers suspected there was something in the bag that Darteh didn’t want them to see.

When the officers inquired about the backpack, Darteh shoved and kicked one of the officers and ducked into his apartment. The officers entered the apartment the scuffle continued as they tried to arrest Darteh. Police then searched the backpack and discovered a handgun. Darteh was charged with numerous firearms related offences and assaulting a police officer.

At his trial Darteh argued that his section 8 and 9 Charter rights had been violated and as such the firearm should be excluded and that the assault against the police officer was lawful. Justice Code dismissed the Charter motion and convicted Darteh of the offences: 2014 ONSC 895.

Darteh appealed. He argued that the police arbitrarily detained him and that the trial judge erred in finding otherwise.

The Ontario Court of Appeal dismissed the appeal: 2016 ONCA 141. The Court held that when considered cumulatively the following set of factors provided the officers with the requisite subjective suspicion grounded in objectively discernible facts:

  • The manner in which the appellant had turned to the first available doorway and urgently tried to gain entry by turning the door handle and knocking.
  • The appellant did not have a key to the unit that he was trying to enter.
  • The appellant was carrying a partially consumed bottle of liquor, smelled of alcohol, and had blood shot eyes such that it could be inferred that he had been drinking in the courtyard.
  • The appellant’s very nervous demeanour, including a trembling hand when he produced his health card and his manner of standing with his backpack up against the wall.
  • The complaint from the property manager that there were trespassers in the courtyard area, particularly during the evenings after 8:00 p.m., and that someone appeared to be letting them in. [para 6]

Of note is that the constellation of factors related to a lawful detention under the Trespass to Property Act and the Liquor License Act, and not in relation to the officers believing that Darteh was committing any Criminal Code offence. This is so notwithstanding the fact that the officers were suspicious of how Darteh was angling his backpack away from the officers.  In contrast in R v Grant, 2009 SCC 32 and R v Le, 2014 ONSC 4288 the accused’s body language (fidgeting and blading) led the officers to believe that they might be concealing a weapon.

The distinction about the basis for the detention, that is the Criminal Code or a provincial act, matters little. What does matter however is how the officers articulate the basis for the detention and the “constellation of discernible facts” that lead them to detaining someone.

Although Darteh was not licensed to possess that firearm under any circumstances, he should have heeded Johnny Cash and left his gun at home, where the test for a lawful search requires far more than what the officers had in this case. 

LT

Don't believe everything you see on the internet

Daryl Argent posted two ads on Craigslist. The ads indicated that Argent was looking for a woman between the ages of 18 and 30 interested in smoking marijuana and more. Lest there be any doubt about what Argent meant by ‘more’ he thoughtfully included a picture of his genitals and to seal the deal a pic of him holding a bud of marijuana.

To the layperson such an ad may have simply taken at face value: a guy looking for a girl to get high and have sex. To Det Brien Smith of the Child Pornography Unit at the Hamilton Police Service the ad held some potentially hidden meaning. In his training Det Smith had learned that people who are seeking sexual activity with children will often mention the age 18 in their ads. This is because Craigslist does not allow personal erotic ads to specify an age less than 18. Det Smith honed in on Argent’s ad because of his mention of the age 18.

Det Smith posing as a 14year old girl named Carlee responded to Argent’s ad. The response read:

Hey..cool pix! im not sure which is bigger…the bud in your hand or your bud! lol!…smoked for first time at my gr8 grad a few weeks ago..yeah! lemme know when you r smokin again some time…luv to try again [para 4]

The two exchanged messages and Carlee revealed that she was 14yrs old, a virgin, in the eighth grade and inexperienced with drugs and sex.  Argent responded with talk of oral sex and condoms for vaginal sex.

Argent was arrested and charged with luring a child to engage in sexual activity. Argent was convicted. He appealed. One of the grounds of appeal was that the trial judge erred in dismissing Argent’s request for a stay of proceedings on the basis of entrapment. The Court of Appeal found no error: 2016 ONCA 129.

Argent argued that the police lacked the reasonable grounds to suspect that criminal activity was taking place. He argued that the fact that the ad specified the age of 18 did not on its own provide the requisite level of suspicion. Moreover, Argent argued that it was ‘Carlee’ and not him who sexualized the content of their communication since she made the double entendre reference to Argent’s bud.

The Court of Appeal rejected these arguments and held that:

[t]he ad included a photo of the appellant’s penis and requested a smoking partner “and more”. The police’s consideration of the use of the age 18 as a flag for potential child abusers was reasonable. This was the lowest age that could be posted.
We do not agree that the officer manufactured the criminal activity by sexualizing the first communication. The photos had already done that. The communications from the officer made it clear from the outset that Carlee was 14, had just graduated from grade 8, was inexperienced sexually, and was under the watch of her mother. The questions posed by the officer were open-ended.  It was the appellant who pursued the discussion of sexual activity. These facts support the officer’s suspicion that criminal activity was underway [paras 12-13]

It is hard to imagine that the Court could have found anything less than sexualized content in Argent’s ad given that he had posted a picture of his genitals along with his request for female pot smoking company. However, an interesting feature in this case is the Court’s acceptance of the fact that the specified age of 18years could in fact mean an age less than 18. Given that the website does not allow ads with the age of less than 18, the court had no difficulty accepting that not everything on the Internet should be taken at face value. Argent wasn’t the victim of entrapment he simply got caught. 

LT

Sexual Assaults are Acts of Power, Aggression and Control

On November 8, 2011 Christopher Edgar forced his way into a woman’s apartment. He put her in a chokehold. He ordered her not to scream. Once he had forced his way in, he locked the door and released the complainant. He started ranting about a police chase and drugs. Edgar was red and sweaty; possibly high - he paced angrily and erratically between the complainant and her front door while making telephone calls. The complainant was terrified. She asked if she could smoke cigarettes and drink tea on the balcony. Edgar allowed it. The balcony was the only place, aside from her front door, where the complainant could possibly go.

When first on the balcony, Edgar told the complainant that before he left, they had to have an agreement – but first, he needed her to come inside and watch him masturbate. The complainant complied. She sat on the couch near Edgar while he masturbated by putting his hands down his pants. He did not expose his penis or touch the complainant. After a few minutes, Edgar asked the complainant when her husband was going to be home. She told him soon.

By this point, Edgar had been in the complainant’s apartment for about an hour. The complainant’s terror had mounted. In fear of being raped or killed, she ran out on the balcony, and dove over the railing. She fell 12 feet to the ground, and broke both of her ankles.  She screamed for help and tried to run away [@ paras 5-6].

Edgar was found guilty after trial of sexual assault. On appeal, he argued that because there was no overt interference with the complainant’s sexual or bodily integrity, the trial judge erred in convicting him.

The Court of Appeal did not agree: 2016 ONCA 120. To commit a sexual assault, it was not necessary for Edgar to have touched or even verbally threatened the complainant. A person’s act or gesture, without words, force or any physical contact, can constitute a threat to apply force of a sexual nature, if it intentionally creates in another person an apprehension of imminent harm or offensive contact that affronts the person’s sexual integrity.  Coupled with a present ability to carry out the threat, this conduct can amount to a sexual assault [see R v Cadden (1989) 48 CCC (3d) 122 (BCCA) and R v Johnson, 2006 CanLII 37519 SCJ)]. 

The Court of Appeal rejected giving Cadden and Johnson a narrow interpretation that required overt acts combined with verbal demands made of the victims. Rather, the Court found that Edgar’s act of masturbation was elevated from an indecent act to a sexual assault because of the surrounding circumstances of sexualized violence, control, and confinement that he created, and to which he deliberately subjected the complainant. The Court of Appeal held that it was those same types of circumstances that informed the decisions in both Cadden and Johnson [@ paras 12-15].

Further, the Court went on to emphasize, as was done in Cadden, that sexual assault is “an act of power, aggression and control, and that a threat to invade the bodily or sexual integrity of another person or to otherwise apply force is itself a hostile act” [@ para 16]. In this case, Edgar had intentionally terrorized the complainant for a prolonged period, in violent and sexualized circumstances, causing her to reasonably believe that he had the present ability to rape or kill her [@ para 16].

The Appeal was dismissed. Viewed in the context of the entire circumstances, Edgar’s acts indeed constituted a sexual assault [@ para 17].

Comment

Sexual assault prosecutions are difficult prosecutions for complex reasons. It is an area of criminal law that faces a myriad of legal nuances and engrained biases that are absent from other types of criminalized conduct. The Court of Appeal’s comments in Edgar highlights that the focus in sexual assault cases is largely centred on the integrity and subjective experiences of the complainant, and in this case, the surrounding circumstances which inform those experiences. The sexual integrity of the complainant is a paramount consideration, and the intent is only general. The Court’s reasons in Edgar are very clearly aligned, and properly so, with the Supreme Court’s decision R v Chase [1987] 2 SCR 293.

SS

Get your conjunctions right and/or don't - Doesn't Matter

LB was killed in his own home by a single gunshot to the chest. Van Every was convicted of second degree murder in the death of his friend who was also the second in command of his drug dealing business.

The Crown’s theory was that Van Every murdered his friend because LB had disrespected him earlier that evening. The Crown argued that it was a planned and deliberate murder. The defence on the other hand argued that JG, another friend and drug dealer who was also present in the home on the night of the murder was the real killer but that if Van Every was the shooter, well he was too drunk to form the requisite intent.

Over the course of his charge to the jury Whitten J misstated the requisite intent for murder. Several times throughout the charge the trial judge stated that to find that Van Every had the intent for murder the jury would have to be satisfied that: Van Every intended to kill LB or to cause bodily harm that he knew was likely to cause death OR was reckless whether or not LB would die.

The correct wording for the intent for murder is as follows; Van Every intended to kill LB or cause bodily harm that he knew was likely to cause death AND was reckless whether or not LB would die.

Van Every appealed his conviction and sentence: 2016 ONCA 87.  One of the grounds of appeal was the trial judge’s misstatement of the requisite intent for murder. 

van Rensberg writing for a unanimous Court dismissed the appeal. As a starting point the Court noted that something more than a legal error is required before there is appellate intervention. The test is “was there a substantial wrong or miscarriage of justice caused by this error, on this evidence at trial.” [citing Watt JA in R v Moo, 2009 ONCA 645 at para 68]

The Court concluded that when the instructions were considered as whole and given the positions taken by the Crown and the defence “it is inconceivable that the jury would have understood the instruction the way the Appellant now contends – that they could find the appellant guilty of murder if he had recklessly caused LB’s death, and that they would have found him guilty of second degree murder on that basis.” [at para 52]

van Rensberg offered four reasons for this conclusion.

First, the incorrect words must be read in context of the instructions on intent as a whole. In every instance that the judge described the intent for murder he correctly framed the intent as having two alternatives: the intent to kill or the intent to cause bodily harm likely to kill. In fact on several occasions the trial judge referred to each of these alternatives by a shorthand “intent to kill or intent to cause bodily harm. This, the Court of Appeal held “is inconsistent with a third and freestanding intent for murder, that of “recklessness”, which the trial judge did not further explain.” [at para 53]

Second, no one noticed the mistakes at trial, even though it was made repeatedly. The Court of Appeal noted this in the context of concluding that the mistake was immaterial. [at para 54]. In fact counsel had draft copies of the charge which contained the erroneous wording. “There was no objection to that part of the charge at any time during the trial: not in the pre-charge conference, not when the trial judge reviewed the draft decision tree with counsel and repeated the erroneous wording three times, not when the trial judge solicited comments from counsel during one of several breaks in reading his charge, and not after the charge was given.” [at para 56]

Third, both the closing addresses and the balance of the jury charge clearly indicate that recklessness as an independent route to establishing the mens rea for murder was simply not in play.  [at para 57]

van Rensberg concluded the analysis by looking at the parole ineligibility recommendations of the jurors as a gauge for their views on the level of intent. The Court noted that:

although one can never know precisely how the jury arrived at its verdict in the present case, its recommendations on parole ineligibility shed some light on how they viewed the case. Five jurors recommended 25 years before Van Every was eligible for parole. Two recommended 20 years. Three recommended between 15 and 18 years. Two abstained. As the trial judge noted at the sentencing hearing: “Now obviously from that statistic, the jury, the members of this community were of the view that this was a serious second degree murder and it would indicate seriousness which became closely akin to that associated with first degree murder”. This belies appellate counsel’s suggestion that the jury “may well have” convicted Van Every based on mere recklessness. [at para 67]

Being nitpicky about grammar isn’t going to overturn a murder conviction… unless maybe you were nitpicky the first time around too.

LT

 

Quick Pleas? Better think fast...

Ratio

The Ontario Court of Appeal recently ruled in Quick that when a person pleads guilty to a criminal charge, prior knowledge of the “collateral consequences” of conviction can be crucial to securing the plea as an “informed plea”: 2016 ONCA 95. 

Facts

Quick involved a guilty plea by Mr. Quick to a charge of dangerous driving.  The plea was part of a resolution involving other charges.  The resolution agreement was for a custodial sentence; no driving prohibition to attach to the ‘dangerous’ charge.  Mr. Quick’s counsel told him he would lose his licence for one year.

Under s. 259(2) a Canada wide driving prohibition is discretionary for convictions for dangerous driving simpliciter.  Mr. Quick did receive a jail sentence and no driving prohibition was imposed.  But when the dangerous driving conviction came to the attention of the Ministry of Transportation of Ontario, (hereinafter “MTO”), Mr. Quick’s licence was suspended indefinitely.  Mr. Quick had two prior impaired driving convictions on his record from within the last ten years. 

The Appeal

At the Court of Appeal, Mr. Quick attested by affidavit that at the time he plead guilty to the ‘dangerous’ charge, he did not know about the consequences he would face vis-à-vis the MTO.  Mr. Quick swore that had he known he would lose his licence indefinitely, he would not have plead guilty and would have had a trial.  Therefore, he argued, his was not an “informed plea”.

The Decision

Laskin, J. agreed with Mr. Quick, and struck his plea, overturning the conviction.  In the decision Laskin, J. sets out a handful of signposts for navigating through the rough terrain ahead, of collateral consequences, knowledge of which can be integral to securing an informed plea.

For collateral consequences to be the type that affect the informed nature of a guilty plea they must be “significant”.  “Significance” is a modification on earlier analyses by lower courts where the concept of “legally relevant” collateral consequences was invoked to decide those that count.

After Quick, “significant” collateral consequences are identified by looking subjectively from the point of view of the accused for what matters.  Mr. Quick was a truck driver by trade, so an indefinite licence suspension by the MTO would be “significant” to him.  “Significant” to an individual are consequences, knowledge about which would change a plea to a trial.   

Quick’s collateral consequences for the Crown and courts

What is curious and perhaps cumbersome about the Quick way forward is the filter for significance in consequences is bound up with the individual accused, while the interests in ensuring knowledge about penalties – to secure pleas – falls to the Crown and to the courts. 

Moreover, while the type of collateral consequences likely significant in a given case might be possible to identify, such as transportation, or immigration based consequences, the particular impact of a conviction may be discretionary not automatic, or unable to be determined from outside the collateral agency or department.  For example, the Crown would not likely know the specific immigration status and history of an individual canvassing a plea agreement, and therefore not be able to convey the potential collateral immigration consequences of entering a plea, nor likewise the policies of transportation ministries in other provinces than the one where a plea negotiation is taking place.

Comment

If the collateral consequences are to qualify as significant, and the details of collateral penalties in every given case are to be so individualized in the “informed” analysis - and so closely scrutinized in hindsight - then shouldn’t it be the individual himself or herself, who is charged with the foresight?

LR

The victim surcharge...

Nancy Bateman pleaded guilty to assault. Bateman had thrown a bowl of hot soup at the victim while the two were residents in “a transitional housing facility in the 200 block of Main Street in Vancouver” [para 4]. The sentencing judge imposed an absolute discharge. In relation to the victim surcharge the appeal court noted that the following transpired:

In relation to the mandatory $100 victim surcharge under s. 737 for this summary conviction offence, Defence counsel said the accused wanted the victim surcharge to be payable forthwith and to be found in default. After consulting with his client, however, he changed this submission and said she wanted to have six months to pay. The trial judge acceded to this request, stating: 
THE COURT:  Yes. What I will do presently today is I will give Ms. Bateman six months to pay the surcharge.
Another lawyer who happened to be in the courtroom asked if she could “assist the court” and then suggested a “rather unique, relatively creative approach” using the fine option program in s. 736.
Over the objection of the Crown, the trial judge then said that she was going to deem the victim surcharge paid under s. 736(3). When Crown counsel asked by what mechanism, the trial judge stated: 
THE COURT:  I am just deeming it paid. 
Proceedings were then adjourned, and the accused and both counsel left the courtroom.
Later the same day, at the request of the trial judge, both Crown and defence counsel returned to the courtroom. In the absence of the accused, the trial judge announced that she was going to enter a stay of proceedings on the charge. When Crown counsel asked the trial judge to provide reasons, the trial judge said:
THE COURT:  Well, if the matter had proceeded to trial, I believe the young woman would have been acquitted. And she was not – she clearly wanted to proceed, most likely because of her mental health issues. And perhaps those should have been taken into account when the charge approval decision was made.
[Paras 9-13].

The Crown appealed. The appeal was allowed in relation to the stay: 2015 BCSC 2071. Bateman conceded that the judge was functus. The appeal court held that the sentencing judge’s reasons did not “provide a proper basis for entering a stay” [para 15].

Turning to address the victim surcharge, the appeal court held:

I agree with counsel for Ms. Bateman that notwithstanding s. 737(4), a sentencing judge retains a discretion to allow no time to pay, pursuant to s. 734.7(2). This is because s. 737(9) provides, inter alia, that s. 734.7 applies, with any modifications that the circumstances require, in respect of a victim surcharge, and that any reference to “fine” in s. 734.7 must be read as if it were a reference to “victim surcharge”. [Para 32].

Notwithstanding this finding, the court imposed the surcharge and granted six months to pay – the initial position advanced by Bateman.

With respect, there are at least two problems with this finding. First, having concluded that the offender lacked the means to pay it is illogical and improper to impose the surcharge and vary the time to pay causing an immediate default. In British Columbia the offender would have been grant 2 months to pay. If he did not pay – because, as the court found on the day of sentencing he was unable to – then no jail would be imposed: see R v Wu, 2003 SCC 73. In effect, the court has imposed an unnecessary jail term.

Second, the point of section 734.3 (which allows for the court to vary time to pay) is to allow an offender more time to pay. Overriding the statutory time to pay – forcing immediate default – is not only inconsistent with the dicta in Wu (that courts should not determine future ability to pay at the time of sentencing) but it also appears to be a means to avoid the imposition of the surcharge.

DM

No Free Downloads

Jeremy Glenfileld was charged with impaired driving causing death, dangerous driving causing death and refusing to provide a sample of his breath.  Shortly before Christmas in 2011, Glenfield was alone in his car when he ran a stop sign and struck the Huber family, husband and wife and their two young sons, who were proceeding lawfully through the intersection. Glenfield struck the driver’s side passenger door where 11 year Jeremy was sitting; he died the next day.

At the time of the accident it was snowing lightly and the roads were wet. Witnesses smelled alcohol on Glenfield’s breath. Within 6 minutes of arriving on scene police issued a roadside demand, which Glenfield failed. Later at the police station Glenfield refused to provide a sample of his breath.

Glenfield elected to have a preliminary hearing; he was committed to stand trial. Glenfield then elected to have trial by judge and jury. At the start of his trial and with the Crown’s consent Glenfield re-elected to have a trial by judge alone. The trial proceeded in a blended fashion with Glenfield’s two applications to have evidence excluded heard along with the trial evidence.

One of the applications concerned the “Event Data Recorder [EDR]” seized from Glenfield’s Jeep at the scene of the accident: 2015 ONSC 1304.  Cst Stotts arrived on scene nearly an hour after Glenfield had failed the roadside demand. Stotts was assigned to collect “roadway evidence.” Stotts had no idea who the Jeep belonged to and if any charges had been laid. Stotts entered the Jeep and downloaded the information on the EDR. Stotts testified that he did so in order to avoid having the EDR reset by the jostling that would be caused by towing.

To get to the EDR, Stotts forcibly removed a cover in the front passenger area of the console and using a Crash Data Retrieval system he downloaded some of the data. It is that information that Glenfiled sought to have excluded on the basis that his right to be free from unreasonable search and seizure had been violated.

Hambly J held that “the owner of the damaged vehicle in a collision has a reasonable expectation of privacy in the contents of the EDR” [para 46]. Since the police had neither Glenfield’s consent nor a warrant they were trespassing when they entered Glenfield’s vehicle.

Hambly J held that there was no evidence that police:

knew how the accident happened. He sought to download the EDR in the Huber van but did not have the equipment to do so. He seems to have proceeded on the basis that there was a motor vehicle accident resulting in two damaged vehicles. He would therefore download the EDR information on them that he could conveniently access. This could be used in the prosecution of any charges that might be laid. If this is permitted, this means that the police can without a warrant enter any damaged vehicle at the scene of an accident, gain access to a computer like device in the vehicle by damaging the vehicle and download information from it of extensive details about the movement of the vehicle. There were no exigent circumstances making it necessary for the police to act before obtaining a warrant. The police could have entered the vehicle for the sole purpose of deactivating the power to the EDR. This would have protected the risk of the information recorded of the movement of the vehicle in the five seconds before the accident being erased by an accidental event. The vehicle could have been towed to a storage yard and a warrant obtained the following day. The vehicle also could have been left at the scene until the following day. It was not obstructing traffic. A police officer could have been stationed there to maintain the security of the vehicle.6. Biographic Core Test [para 51].

After concluding that the police had violated Glenfield’s section 8 Charter rights the court then turned to whether the evidence should be excluded. Hambly J held first, that the seriousness of the breach was at the low end of the spectrum [para 74]. Second, that the impact on Glenfield’s Charter protected interest was low. [para 75] Third, that the exclusion of the evidence would effectively gut the crown’s case. [para 76]

In balancing the factors the Court concluded that Glenfield had failed to establish administration of justice would be brought into disrepute by the admission of the EDR evidence. [para 78]

One important aspect of this decision is Hambly J’s instruction to police on how they could have lawfully secured and searched for the data on the EDR.  Hambly J explained that “police could have entered the vehicle for the sole purpose of deactivating the power to the EDR”. By deactivating the power they would have protected the information on the EDR while they secured a warrant. [para 51] 

LT

Toews Counting: one day for one day

Trevor Toews was convicted of second-degree murder. With respect to sentence, the Crown and defence were ad idem regarding the appropriate period of parole ineligibility - 10 years. The sentencing judge accepted this position. The judge, however, reduced the 10 years to 6 years and 8 months to "reflect an enhanced credit for pre-trial custody" [para 1]. The Crown appealed that ruling. The Court of Appeal allowed the Crown's appeal: 2015 ABCA 167.   

Enhanced credit may be given where a court imposes a jail sentence, pursuant to section 719(3.1). The discretion to do so, provided in that section, has no application to life sentences for murder; that sentence is prescribed by 745(c). Time spent in custody prior to sentencing for murder is included in the calculation of the period of parole ineligibility but enhanced credit cannot be given in relation to that time [paras 3-4]. 

There is nothing in the statutory scheme that expressly supports a discretion to reduce the period of parole ineligibility below the statutory minimum. The absence of a specific provision precluding the discretion cannot support the existence of a residual discretion contrary to the statutory scheme. These conclusions are consistent with decisions of this Court and other appellate courts: R v Stephen, 1999 ABCA 190 (CanLII); R v Tsyganov,1998 NSCA 227; R v Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 161 OAC 169 (CA).
The respondent argues that had he known there was an issue as to the availability of an enhanced credit, he may have led evidence to justify the credit. This argument cannot succeed. No amount of evidence can overcome a lack of jurisdiction. [Paras 4-5]

DM

Reliable Co-Accused

Jeffrey Woodman was out shoplifting with a group of friends.  They left the scene of their crime in a car. When a police officer approached the vehicle, the car accelerated towards the officer, struck him and sped off.   The officer sustained serious injuries. The principal issue at trial was the identity of the driver at the time the officer was struck. Woodman was convicted by a jury of his peers; the Ontario Court of Appeal dismissed his appeal of both conviction and sentence: 2016 ONCA 63. 

Woodman testified at trial. He admitted to shoplifting with his friends. He admitted to that he got into the driver’s seat and that he was the one who was driving when the car fled from police. However, Woodman maintained that that he was not driving the car when it struck the officer. 

The officer could not identify the driver and of the males in the vehicle only one came forward and offered information about who was driving the vehicle. 

At 3am a few hours after the officer was struck, Stinson provided a video recorded statement to police.  Stinson identified Woodman as the driver of the vehicle. The statement was unsworn. When called upon to testify at trial Stinson claimed to have no recollection of the events because he was under the influence of heroin. 

The trial judge admitted Stinson’s statement to police for the truth of it’s contents. Woodman argued on appeal that this was an error worthy of granting Woodman a new trial. The ONCA disagreed. 

The Court held “the trial judge properly exercised his role as gatekeeper in admitting Mr Stinson’s statement that met the twin threshold requirements of necessity and reliability: R v Youvarajah, 2013 SCC 41 at para 21.”

First, the Court found that the necessity criterion was made out on the basis of Stinson either failure or refusing to adopt his prior statement [para 8].

Second, the trial judge did not err in finding that threshold reliability criterion was met based on the following factors: 

  • The statement was given to police within hours of the incident
  • The statement was video recorded
  • Stinson’s demeanour and credibility at the time the statement was given could be assessed by the trier of fact 
  • Stinson appeared to be coherent, responsive to questions and not under the influence of drugs or alcohol
  • The declarant was available for cross-examination 
  • Several aspects of the statement were corroborated and/or confirmed by other evidentiary sources including the injured officer and video surveillance from the store where the group was shoplifting [para 9]

Woodman argued that the Supreme Court’s relatively recent decision in Youvarajah was determinative of this appeal. In Youvarajah the trial judge declined to admit a recanting co-accused’s statement notwithstanding the fact that the co-accused was available for cross-examination. Woodman emphasized that Stinson had a powerful motive to lie: saving his own hide and thus his statement to police should not have been admitted. 

The Ontario Court of Appeal distinguished Youvarajah from the circumstances in Woodman explaining that: 

(…) in our view, the circumstances of R. v. Youvarajah are distinguishable from the case at bar. In R. v. Youvarajah, the Court noted the absence of the following indicia of reliability that are present in the case at bar: the statement in issue was an agreed statement of facts prepared by the co-accused’s lawyer rather than the witness’ own spontaneous words, for use at his own separate youth trial as part of a plea agreement; the co-accused testified that he did not understand everything that he read in the statement; the statement was not videotaped so that there was no opportunity to assess the co-accused’s demeanour or credibility; and the co-accused not only recanted his previous statement but admitted at the appellant’s trial the acts in which he had implicated the appellant in his previous statement.  Most important, cross-examination of the co-accused would be effectively precluded by his invocation of solicitor-client privilege. None of these factors features in the present case [para 11].

Finally the Court noted that in addition to having properly exercised his gatekeeping function with respect to the admissibility of the statement, the trial judge also properly instructed the jury on how they were to evaluate the statement [para 13].

Woodman was sentenced to 4years and 8months in prison after having been credited with 1 year and 4 months pre-sentence custody. The Court dismissed his sentence appeal. 

LT